Re: obscure derivative works question

On 11/11/96, Dennis Karjala wrote:
>
> John Noble writes, with respect to my suggestion that a new story
> using protected characters could be a "part" of the derivative work
> that did not make use of protected materials (and therefore to that
> extent itself be copyright protected):
>>
>> It seems in your example that the author of the derivative could
>> basically do a search-and-replace substituting "Herschel" for "Rocky"
>> and he'd have a fixed, original and copyrightable work. I'm
>> simplifying-- maybe you also need to change his working class Italian
>> background, but this is basically Computer Associates, isn't it? Just
>> identify and yank the infringing elements.
>
> I don't understand the "search-and-replace" aspect of this
> question. In my hypo, the DW author has herself constructed a brand
> new story. She is not simply searching and replacing in Stallone's
> protected story. So, given that she's written a new story, after
> excision of the protected elements that belong to someone else (by
> using "search and replace" if you will, provided it grabs all the
> protected elements), I don't see why Stallone or anyone else should
> be able to make free use of the creative expression in the story
> elements that remain. John is usually highly solicitous of the
> authors of creative expression. Why not here?

Either I misunderstood your example, or you misunderstand my response. Perhaps you just expect us to disagree (which wouldn't be all that unusual), but here I was agreeing that the derivative work employing copyrighted characters is indeed independently copyrightable if and to the extent you can "remove" the elements appropriated from the original work. The "search and replace" reference was to illustrate how readily the _derivative work_ could be conformed to the originality required for copyright protection by replacing the appropriated character "Rocky" with the original character "Herschel" in an otherwise wholly original story. I cited Computer Associates in support of your analysis of the separability of protected/original and unprotected/appropriated elements.

>> How would your construct apply to these facts? Producer makes
>> industrial/educational videos. Company purchases a copy of one of
>> Producer's programs, and has it translated into Spanish and dubs a
>> sound track so that the program can be shown to employees in Company's
>> Mexican plants. Set aside the fair use question, and assume that
>> Producer can prevent Company from using the unauthorized derivative.
>> Under your analysis is there a way to "separate" the copyright
>> protection denied under 103(a) from the "part" of the derivative work
>> which is original, i.e. the specific Spanish language translation.
>> Note that if the translation is more or less "literal", when you "strip
>> out" the nonliteral elements, you are basically left with just the
>> "idea" of a Spanish language translation, which is obviously not
>> protectable. In short, can Company prevent Producer from copying and
>> distributing the Spanish language version of the program.
>
> I never said that everything new in a DW was a separable "part"
> that might be protected. I personally see no way to separate the
> "expression" in an English-language literary work out of a translation
> of that work into another language and still leave anything to protect.
> But what does this hypo have to do with mine?

Again, I wasn't trying to poke holes in your analysis, but extend it to a harder case (in keeping with my usual solicitude for the authors of creative expression). Is it possible in my hypo to separate the Spanish expression as a protectably original "part" of the unauthorized derivative translation. I agree that the author of the derivative cannot copy/distribute the unauthorized derivative because (unlike your hypo) the appropriated elements of the original are not segregable (in my hypo). But can he nonetheless prohibit the appropriation of his own at least minimally creative (Spanish) expression by others, including the author of the original English work?

You seem to interpret my attempt to apply your analysis to these facts as an ad absurdum attack on your analysis. This suggests that I'm over-reaching. But it seems to me not unreasonable to conclude that the author of an unauthorized derivative, while liable for damages (if any) and subject to an injunction (where appropriate), does not also forfeit his creative contribution.

John Noble
<jnoble[_at_]dgs.dgsys.com> Received on Wed Nov 13 1996 - 13:53:21 GMT